June 7, 1866

The Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (II. R. No. 127) proposing an amendment, to the Constitution of the United States, the pending question being on the amendment offered by Mr. Williams, to strike out the second section and in lieu thereof to insert the following:

Rkc, 2. Ke prestmtfttives shall be apportioned among cms? tlio several States according to their re spoetivonum numbers, counting I lie whole number of persons in each State, excluding Indians not taxed. But whenever the right to voir, itt, any election held under theConstitulion and laws of the United States, or of any SI lite, is denied to any of the unilo inhabitants of Midi Sj ile being wenty ono years of use and citizens of the I! it it ed Hht le s or in any way ubi idi ed except for part iei pat ion in rebellion or other en mo. the basis of representation therein shall be reduced in tin, proportion which the number of such male eitivens shall bear to the whole number of male citizens twciily otio j years of hro in such State.

Mr. DAVIS addressed the Senate for nearly four hours. [His speech will be found in the Appendix.]

Mr. HENDRICKS. If no gentleman desires to speak,[ was requested by the Senator from Maryland [Mr. Johnson'] to take the floor for him, as he wishes to address the Senate on the question; and unless some gentleman proposes to address the Senate now 1 will move ati adjournment.

Mr. CLARK. I will inquire of the Senator from Indiana if he will not withdraw that motion and let us come to a vote on the amendments. We perhaps can take a vote on the amendments without debate, and then go on with the debate on the resolution in the morning, and thus save a little time.

Mr. HENDRICKS. 1 have no objection to that.

The PRESIDENT pro tempore. Does the Senator from Indiana withdraw his motion?

Mr. HENDRICKS. Yes, sir.

The PRESIDENT pro tempore. The motion to adjourn is withdrawn, and the question is on the amendment offered by the Senator from Oregon [Mr. Williams] to strike out the second section of the resolution and insert a substitute.

The question being put, the amendment was declared to be agreed to.

Mr. HENDERSON. I ask for a division. I hope the amendment will not be adopted.

The PRESIDENT pro tempore. The Chair declared it carried.

Mr. HENDERSON. I ask for a division

The PRESIDENT pro tempore. Those in favor of the amendment will rise.

Mr. HENDERSON. I desire to say just one word before the division. I will not take up any time. The object of this amendment is to secure nothing more nor less than is secured by the second section of the original proposition, and it is not pretended by any gentleman that it will accomplish anything additional to what is included in the section as it now stands. I will state a fact in reference to my own State, and then the Senate can do with it what it chooses.

This amendment reads:

But whenever the right to vote at any election held under the Constitution arul laws of the United States, or of any State, is denied to any of the male inhabitants of such State, <fcc.

Now, we have in our State an election for school directors, a general election held in every municipal township throughout the State of Missouri, at a certain time. At that election there are qualifications prescribed that we deem absolutely essential to keep up the common school system in our State. For instance, property holders only vote for school directors, because the tax for building the school houses is only imposed on property holders. There is an election also for school trustees. The school directors divide the congressional townships into districts for school purposes, and those trustees are elected by the persons who have children to send to school. Now, if it be intended to exclude all persons who cannot vote at those elections from the basis of representation, 1 apprehend that not only will the negroes of my State be excluded under the proposed amendment, which will lose us a member in Congress, but it will exclude two thirds of the whites of the State of Missouri. I desire to know whether any such construction can be given to this proposition. It has been said, in reply, that S the proposition as it now stands is subject to the same objection. I think not; because no court will construe, and Congress cannot possibly construe, the meaning of "the elective franchise," as generally used, to apply to such elections as that. 1, at least, prefer the language of the original section to this amendment. I do not want to put myself in the way of what has been determined by the committee; bin, I do not desire to vote for a proposition that a sound and reasonable argument can be made against. I see no use of it. We do not accomplish anything whatever by it. Of course it may be left to Congress hereafter to say, under the section as it. now stands, whether the elective franchise" has been refused or not, and of course they will apply it to the general elections for political oiliees. But the language of this amendment is, "whenever the right to vote at any election." That language is not used in the original section. There is an election in my State where individuals are denied the right to vote unless they have a property qualification. The section which it is now proposed to strike out and to put this in lieu of it does not contain this objectionable language. It does not say "at any election." Therefore the inference will be that, it, applies only to those general clci tions at, which political officers are elected, members of the Legislature, Governor, judges, &c. I prefer that this amendment should not be adopted. I do not think it ought to be the desire of members of the Senate to put any gentleman in an indefensible position in his own State where the laws of his State are of such a character that he cannot defend himself against a reasonable, rational opposition.

Mr. FESSENDEN. The Senator is in error in one particular, in saying that there was no difference between this amendment and the section as originally reported.

Mr. HENDERSON. In design.

Mr. FESSENDEN. There is no difference in design; but the difficulty is, that as originally reported the provision was, in my judgment, and in the judgment, of others, quite imperfect, for this reason: its language was, "if the elective franchise shall be denied orin any way abridged." The preceding clause was that" Representatives shall be apportioned" in such and such a manner. The subject matter of the clause is simply the apportionment of Representatives in Congress. Then it goes on to say, "if the elective franchise shall be denied." Itisavery common and well received rule of construction that the words in a sentence must, if they can be naturally, limited to the subject matter of the provision itself. Therefore it might be held, and in my judgment it might be properly held, as the section stood originally, that if the elective franchise was granted in the election of Representatives to Congress and denied in everything else, that denial in everything else would not have any effect, on the basis of representation, and under that construction the provision would not accomplish the purpose which was designed, because it was designed to cover the whole; and therefore it became necessary to change the language. The committee decided that it was advisable to change the language, and we decided on the language that is found in the amendment now before us. If other language can be found that is unobjectionable, and that would cover it, of course we are not particular about that.

I do not think the amendment is open really to the objection that my friend has stated. It is intended to cover the election of officers generally: but if all those arrangements which are made with reference to minor matters are looked to, it would be impossible absolutely to give it any practical effect, because you never could tell what the numbers were that were disfranchised, if you please to call it disfranchisement, by any provision of the kind that he speaks of. 1 If it would be held to apply to the election in school districts of school officers, 1 do not see why, by the same rule, it would not, apply to the election of directors in banks or other corporations in the States, and certainly it never would be carried to that extent. The words must have a reasonable construction always, and a reasonable limitation.

Mr. HENDERSON. Will it apply to the election of city officers under the amendment as it now stands?

Mr. FESSENDEN. I think it would to municipal officers.

Mr. HENDERSON. Then why would it not apply to the election of a township officer, because that is still larger?

Mr. CLARK. Is it a political office? I do not think a school director is.

Mr. HENDERSON. The mayor or recorder of a city is not a political office.

Mr. FESSENDEN. A municipal officer is a term very well understood. I think it would be a matter of difficulty, not to say impossibility, to carry it out with reference to finding out who were disfranchised in such elections as I he Senator speaks of, and I do not think this proposition could be held to apply to such elections at all. I do not believe it will be attended with any difficulty. At any rate, to meet the object, we could not devise a better form of words than we have. I know I worked on that second proposition until my head got so thoroughly muddled with it that 1 would not attempt to make another.

Mr. HENDERSON. I suppose it is in order to amend the proposition before it is acted upon.

Mr. FESSENDEN. I suggest that the Senator had better let it be adopted, and then he can move his amendment when we come into the Senate, and he will have an opportunity to deliberate upon it in the mean time.

Mr. HENDERSON. I do not wish to take any time about it, but my objection is a serious one, and I am in earnest about it. It is a thing that I really think ought to be attended to.

Mr. TRUMBULL. We do not seem to be making any progress, and there is some misunderstanding as to what the precise meaning of this language is. I suggest, therefore, whether we had not better adjourn and settle it in the morning. We all desire the same thing, I suppose.

Mr. FESSENDEN. We had better get through with these amendments and have the resolution reported to the Senate, and then we can amend this proposition afterward, if necessary.

Mr. TRUMBULL. But we are not likely to get through them, because there is a controversy arising, and if we have got to change them we had better have a little time to consider them.

•-'Mr. CLARK. I suggest that we have the resolution reported to the Senate, and then we shall luive time to change it.

Mr. TRUMBULL. Nothing will be gained by that.

Mr. CLARK. We shall get through one stage of it.

Mr. TRUMBULL. I shall not make a motion to adjourn if it is objected to, but I think wo might as well adjourn.

Mr. HENDERSON. Before the Senator makes his motion to adjourn, I desire, if this amendment must be adopted, to move an amendment to it. I move to strike out the words—

But whenever the right to vote at any election beld under the Constitution and laws of the United States, or of any State, is denied to any of the male inhabitants of such State, being twenty one years of age—

And to insert:

But whenever the right to vote for Governor, judges, or members of either branch of the Legislature is denied by any State to any of its male inhabitants being twenty one years of ago, &c.

That will certainly include all general officers of a State.

Mr. FESSENDEN. That does, not include Representatives to Congress.

Mr. “HENDERSON. The Senator from Maine seems to be laboring under the impression that that does not include Representatives to Congress. The Senator is mistaken.

Mr. FESSENDEN. I suggest to the Senator whether he had not better let the amendment of the Senator from Oregon be adopted, and then move his proposed amendment when we get into the Senate, and it can be considered to morrow morning.

Mr. HENDERSON. I desire to correct the Senator. The Senator labored under an error when he said that that amendment would not apply to the election of members of Congress. The subject matter that we are talking about now is the qualification of voters. I say that the qualification of voters shall be of ascertain characterfor the election of members of either branch of the State Legislature. The Constitution, as it now stands upon that subject, provides in the second section of the first article that—•"

The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature." Therefore, when you fix the qualification of voters for the most numerous branch or the lower branch of the State Legislature, you fix the qualification of voters for members of Congress. You do not propose to alter the Constitution on that subject. The Senator is mistaken in another proposition—that it will not apply to an election held under the Constitution and laws of the United States. The only election that can be held under the Constitution and laws of the United States is for members of Congress. There is but one other case, and that is the election of Electors who elect the President; but those Electors, as now provided by the Constitution, are to be elected by the State in any manner it chooses. A State may provide that the State Senate may elect the Electors, or it may provide that the two branches of the Legislature may elect them. In South Carolina they are never elected by the people; and unless you alter the Constitution on the subject the State Legislatures will yet have the power to regulate that matter entirely as they please, and this amendment will not change it at all. There is, therefore, but one election that can be held under the Constitution and the laws of the United States, and that is the election of members of the lower branch of Congress, because Senators are elected by the Legislatures. You cannot conceive of another election held under the Constitution and laws of the United States. Hence I can see no necessity for saying, m this amendment, whenever the right to vote in any election held under the Constitution and laws of the United States." Those words are superfluous, because you are fixing- only the qualifications of electors in one case under the Constitution and laws of the United States; that is, of members to the lower branch of Congress. Under the Constitution as it now stands, those electors must have exactly the same qualifications as electors of the most numerous branch of the State Legislature. Therefore, we may as well say, "whenever the elective franchise shall be denied to the persons who elect the most numerous branch of the State Legislature," and then, of course, you have included those words" elected under the Constitution and laws of the United States."

The Senate will see what I am aiming at. I, do not want to get the people of my State involved in any difficulty, nor the people of any other State, and have the probability of excluding from the basis of representation, or even to have the charge made that that is the object or intent of this thing, to exclude from the basis of representation those persons who may fail to be electors at some school election.

Mr. HOWARD. Will the Senator from Missouri allow me to make a single remark here by way of interrogatory?

Mr HENDERSON Yes, sir.

Mr. HOWARD. The proposition of the Senator from Missouri is this, if I understand it, that, whenever any persons shall be by the legislation of a State excluded from voting for members of either branch of the Legislature, the persons so excluded shall not be embraced in the basis of representation. Now, suppose the State should fix one sort, of qualifications for the voters who are to vote for the most numerous branch of the Legislature and a different kind of qualifications for those who are to vote for the less numerous branch of the Legislature, there would be a portion of the citizens excluded in that case, would there not?

Mr. HENDERSON. The larger portion would be excluded, of course, because it applies to either branch of the Legislature. The larger number would be excluded; that is, if one half of the people were excluded from voting for State senators, of course one "half would be excluded from the basis of representation; but if one half were excluded in voting for a senator and only a tenth in voting for the other House, one half would be excluded because the State excluded them in the election of senators. The larger number would always be excluded from the basis of representation.

Mr. HOWARD. Allow me to put it in more tangible form. Suppose, for illustration s sake, that, the whole number in a State of male citizens over the age of twenty one is one hundred thousand, and suppose that by the laws of the State every one of those citizens is allowed to vote for members of the most numerous branch of its Legislature, and that only fifty thousand of them are allowed to vote for members of the upper or less numerous House of the Legislature. You will see, then, that there are fifty thousand citizens of the State excluded from the right to vote.

Mr. HENDERSON. That is so.

Mr. HOWARD. Are those fifty thousand to be included or excluded from the basis of representation in Congress?

Mr. HENDERSON. Under ray amendment, they are excluded, because according to that they must be qualified to vote for Governor, judges, and members of both branches of the Legislature or else they cannot go into the basis of representation. My object was to carry out the principle of the section proposed by the committee, to make it apply to general, political, and judicial officers, and not to make it apply to all minor officers, because if so applied, technically, in my State it would exclude from the basis of representation two thirds of the white people of the State.

Mr. HOWARD. The Senator will see at once that his scheme does not establish any certain and fixed standard for the basis of representation; the elements entering into that basis of representation are quite uncertain and changeable.

Mr. GRIMES. In order to enable the Senators from Michigan and Missouri to come to a satisfactory understanding on this subject, I move that the Senate adjourn.

The motion was agreed to; there being, on a division— 20 ayes and 7 noes; and the Senate adjourned.